… sharing private sexual images and recordings of a person without their consent, with the intention to cause that person harm.

The practice has emerged so rapidly that it is inevitable the law is playing catch-up. Yet in the absence of adequate laws specifically criminalising these wrongs, victims have limited access to justice.

More than revenge

Research suggests that, beyond “revenge”, sexual and intimate images are being used to coerce, threaten, harass and abuse victims.

We’ve written previously about the potential harms, which extend beyond the vengeful actions of a jilted lover and cross over into domestic and sexual violence. The seriousness of this social and legal problem is increasingly being recognised. This has led to calls for the introduction of a specific federal law.

In this way, Australian federal law has not kept pace with evolving behaviours where technology is used to perpetrate violence or harassment.

A federal criminal offence

The majority of the 32 submissions made to the Senate inquiry support the criminalisation of revenge pornography.

As the Law Council of Australia explained, a federal criminal offence would offer a “uniform approach” across Australian states and territories. This is important “in the digital age where images can be distributed and accessed instantly in any jurisdiction”.

The NSW Office of the Department of Public Prosecutions also supported:

… a specifically targeted criminal offence [that] would fill a gap within the existing law and go some way towards addressing what is a growing – and highly damaging – phenomenon.

Women’s legal and support services from across Australia similarly described a federal criminal offence as “an important and much-needed lever in the Commonwealth government’s response to preventing violence against women”. In short, a new federal criminal offence would send a clear message to the community and potential perpetrators that these abusive behaviours are unacceptable and will not go unpunished.

If the Senate inquiry recommends introducing a federal criminal offence (which seems likely given the overwhelming support for this option), there are several issues that lawmakers will need to consider if the new law is to be effective.

Terminology

If introduced, the law will need to define a term that is broad enough to capture the wide variety of revenge pornography behaviours and reflect differences in what constitutes sexual or intimate material in the diverse Australian community.

At the same time, the law must not be so broad that it criminalises behaviours that lack specific, malicious intent.

The definition will also need to ensure the language is gender- and trans-inclusive – for example, by including the breasts of a person who identifies as a woman.

Harm

The offence will need to determine whether the victim(s) must show distress, or whether it is sufficient that a reasonable person would understand the actions might cause fear, apprehension or harm.

As the Women’s Information and Referral Exchange submitted, the harm experienced may not be immediate; for example, it may impact on a victim’s future employment, but this shouldn’t negate the impacts or wrongfulness of the behaviour.

It is important, however, the law takes into consideration the perpetrator’s intent, in addition to recognising the harm/distress caused to the victim(s). In other words, the law should only apply in cases in which the perpetrator knows, or should have known, another person did not explicitly consent to the disclosure of the image.

Take-down orders

The “timely take-down] of identified material shared without consent is of fundamental importance”, and a new offence will need to incorporate specific requirements to address this.

Where the website is a dedicated revenge-porn site, this may be a more straightforward process. But in situations where it is a site simply depicting intimate and sexual images, it may be harder to prove intent to cause harm or distress.

The transnational nature of such “cyber” crimes may also present barriers, in that the website owners may not reside in Australia and so are not subject to its laws.

More than just a criminal offence

While specific federal legislation criminalising revenge pornography is overdue, any new law should not be relied upon as the only mechanism for addressing these harmful behaviours.

Other measures include:

the development of corporate and organisational service agreements and community codes of conduct that include clear statements on the unacceptability of revenge pornography;

support and advocacy for victims of image-based abuse;

training resources for police and service providers; and

awareness-raising and prevention in the community.

We need to challenge the blame and stigma too often directed at victims, and communicate a clear message that it is the perpetrators and those who knowingly distribute these images whose actions must be condemned.

It will take a combination of legal and non-legal measures to create the cultural change needed to support victims, hold perpetrators accountable, and ultimately prevent these harms before they occur.